Last evening, the Court issued the short three-paragraph per curiam opinion in Noem v. Garcia.
After the ruling, many on the left claimed “Supreme Court in a unanimous decision: He has a legal right to be here, and you have to bring him back.”
It is a bit more ambiguous than that. The Court actually warned that the district court could order the government to facilitate but not necessarily “to effectuate” the return.
The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. The order heretofore entered by THE CHIEF JUSTICE is vacated.
So what does that mean? The Court disagrees with many, including the Fourth Circuit, that President Trump had no inherent executive powers to countermand the district court’s order. He clearly does have countervailing powers that have to be weighed more heavily in the matter. The district court is expressly ordered to show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
What is left is a legal pushmi-pullyu that seems to be going in both directions at once. What if the Trump Administration says that inquiries were made, but the matter has proven intractable or unresolvable? Crickets.
No one would seriously believe that, but what right does the district court have to manage the relations or communications with a foreign country?
The problem with this shadow docket decision is that there is more shadow than sunlight in its meaning.